Groups to file complaint over AT&T's FaceTime plan

AT&T’s plan to make customers pay for use of Apple’s FaceTime app when it becomes available over cellular networks Wednesday may prove to be the FCC’s biggest test case to date on how it will enforce net neutrality rules.

A trio of public interest groups notified AT&T on Tuesday that they plan to file a net neutrality complaint at the Federal Communications Commission in the coming weeks.

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“We wanted to get the process started and have the option to go to the commission when iOS 6 comes out [Wednesday],” Free Press Policy Director Matt Wood told POLITICO. “This will become a real problem for real people on release of the new system.”

Apple’s latest operating system iOS 6 becomes available Wednesday and will enable users of the iPhone, iPad and iPod Touch to access the FaceTime app directly over cellular networks instead of only over Wi-Fi connections.

AT&T plans to restrict users of the app to its Mobile Share data plan — a decision that got the public interest groups to call foul and announce the pending complaint.

Under FCC rules, parties filing a net neutrality complaint have to give the company a 10-day heads-up. After the 10 days expire, the groups can formally file their complaint.

The idea is that a cooling-off period will give the parties time to work out their differences, but the likelihood of the public interest groups and AT&T working out a deal looks slim.

“We’re not going to make a deal accepting anything less than full access,” Wood said.

The complaint marks the first real test of the FCC’s controversial net neutrality rules. Verizon has challenged the commission’s authority to write the rules and their constitutional underpinnings in court.

Public Knowledge’s senior attorney John Bergmayer said AT&T’s “behavior is illegal” and needs to be stopped.

“When the FCC adopted its open Internet rules, it guaranteed that mobile users would be protected from such behavior,” Bergmayer said in a statement. “Public Knowledge intends to follow the process the FCC established to make sure AT&T follows the law.”

AT&T contends that it is following the law.

Making FaceTime available over its mobile broadband network for Mobile Share customers actually expands customers’ choices because it makes the popular app available over more than just Wi-Fi, the company said on its website.

“There is no transparency issue here,” Bob Quinn, the company’s chief privacy officer and senior lobbyist, wrote in a blog post recently. “Nor is there a blocking issue. The FCC’s net neutrality rules do not regulate the availability to customers of applications that are preloaded on phones.”

The company contends that the preloaded version of FaceTime is being limited to the data plan over concern for the impact it may have on the company’s network that could slow down other users. The rules give providers the ability to manage their networks in a reasonable manner.

AT&T dismissed the contention that it is violating net neutrality rules. It meets the commission’s transparency requirement because it is telling customers what it plans to do, and the company meets the no-blocking requirement because FaceTime rules do not require that providers make available any preloaded apps, the company said.

While many in the public interest community do not think the FCC’s rules are strong enough, they contend the commission needs to act.

“For those rules to actually protect consumers and allow them to choose the services they use, the commission must act quickly in reviewing complaints before it,” said Sarah Morris, policy counsel for the New America Foundation’s Open Technology Institute.